A new website (see Australian National Car Parks) explains driver's rights regarding "fines" from Australian private parking companies such as Australian National Car Parks.
In all states of Australia, shopping centres and other organisations often hire private parking companies such as Australian National Car Parks to enforce car parking arrangements on their land. Problems regularly arise from "pay and display" car parks, where a driver is required to display a ticket on their dashboard, even if parking in a 'free' spot, or free for a certain number of hours. If you do not display a ticket or overstay the free time, the private parking companies claim large sums of money for this that are out of all proportion to the costs of parking. However, by law, these private companies are not allowed to issue parking fines.
Only government bodies such a councils and police are allowed to issue fines. If you read a fine carefully, you will see they are claiming "liquidated damages". What this means is the parking company (such as Australian National Car Parks) are claiming you damaged their business by breaching the terms of the contract, and they are asking you to pay a certain amount (usually $66.00 or $88.00) to pay for this damage. They claim that by parking without paying, you damaged their business to the value of $66.00 (or some similar amount). This is what they call "liquidated damages". Australian National Car Parks works on this business model. Australian National Car Parks will threaten to take you to court over the fines, and will send you repeated warnings. According to the Unfair Parking Fines website (see Australian National Car Parks), there are various defences to these so called fines:
1. The signs at the car parks saying there is a fee for parking are often in very small print, or cannot be seen from some entrances or cannot be seen at night as they not illuminated). If the sign is not clearly visible, then you the contract is not enforcable.
2. The car park company can only fine the driver and not the owner (i.e. the owner cannot be fined if it cannot be proven that the owner was driving). The car park company will attempt to get the owners name and address from the road traffic agency in your state. However, if the owner says they were driving (or can't remember who was driving), then the case will not stand up in court.
3. The car park company (such as Australian National Car Parks), can only claim liquidated damages that are a reasonable estimate of the damage suffered as a result of the contract being breached — if a court finds the estimate is not reasonable it is defined as a penalty and becomes invalid. In the case of free parking (where you failed to obtain and display a ticket for that free parking), then it is difficult to see how there could be any loss to the company as the parking was free in the first place.
More information is available at http://sites.google.com/site/unfairfines